ALISSA MOON; YASMEEN DAVIS, individually and on behalf of all others similarly situated
BREATHLESS INC, a/k/a Vision Food & Spirits, d/b/a Breathless Men's Club Alissa Moon, Appellant
January 18, 2017
Appeal from the United States District Court for the District
of New Jersey (D.C. Civ. No. 2-15-cv-06297) District Judge:
Honorable Susan D. Wigenton
E. Abay, Esq. [ARGUED] John K. Weston, Esq. Sacks Weston
Diamond, LLC Counsel for Appellant
J. Gross, Esq. [ARGUED] Justin P. Kobenschlag, Esq.
Greenbaum, Rowe, Smith & Davis LLP Counsel for Appellee
Before: FISHER, [*] HARDIMAN, and GREENAWAY, JR.,
GREENAWAY, JR., Circuit Judge.
appeal, we must determine whether an arbitration clause in a
signed contract covers Appellant's statutory claims. The
United States District Court for the District of New Jersey
answered this question in the affirmative. We disagree. We
shall reverse and remand.
2013, Alissa Moon ("Moon") began performing at the
Breathless Men's Club ("Club") in Rahway, New
Jersey. In January of 2015, Moon agreed to rent performance
space in the Club and signed an Independent Dancer Rental
Agreement ("Contract"). The Contract contains an
employment provision and an arbitration clause.
The employment provision provides:
Dancer understands and agrees that he/she is an independent
contractor and not an employee of club. Dancer is renting the
performance space for an agreed upon fee previously agreed to
by Dancer and Club.
The arbitration clause reads:
In a dispute between Dancer and Club under this Agreement,
either may request to resolve the dispute by binding
arbitration. THIS MEANS THAT NEITHER PARTY SHALL HAVE THE
RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL
- DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION.
ARBITRATION MUST BE ON
AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU
NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION, OR
LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE
OR MEMBER OF A CLASS.
August of 2015, Moon sued the Club pursuant to the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201,
et seq., the New Jersey Wage Payment Law
("NJWPL"), N.J. Stat. Ann. § 34:11-4.1, et
seq., and the New Jersey Wage and Hour Law
("NJWHL"), N.J. Stat. Ann. § 34:11-56a, et
seq. App. 10-37. In September, the Club moved to dismiss
the Complaint on the ground that the Contract's
arbitration clause foreclosed Moon from seeking relief in the
District Court. In November, the District Court denied the
Motion to Dismiss and ordered the parties to engage in
limited discovery on the arbitration issue. After discovery,
the Club filed a Motion for Summary Judgment in favor of
arbitration and the District Court held a hearing. On July
29, 2016, the District Court granted the Club's Motion
for Summary Judgment concluding that, "[T]here [wa]s no
genuine dispute as to whether Plaintiff's claims fall
within the scope of the arbitration provision." Moon
v. Breathless, Inc., No.CV1506297SDWLDW, 2016 WL
4072331, at *4 (D.N.J. July 29, 2016). On August 10, 2016,
Moon filed a timely Notice of Appeal. On appeal, Moon asks us
to determine anew whether her claims fall within the scope of
the Contract's arbitration provision.
federal claims, Moon invoked the District Court's
jurisdiction pursuant to 28 U.S.C. § 1331. For her state
claims, Moon drew upon the District Court's power of
supplemental jurisdiction, 28 U.S.C. § 1367. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
Standard of Review
appeal from a grant of summary judgment, our review is
"plenary" and we "apply the same test the
district court should have utilized initially."
Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)
(citation omitted). Summary judgment should be granted only
when the record shows that "there is no genuine dispute
as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
"[A]ll justifiable inferences are to be drawn in [the
nonmovant's] favor, " but the "mere existence
of some evidence in support of the nonmovant is insufficient
to deny a motion for summary judgment; enough evidence must
exist to enable a jury to reasonably find for the nonmovant
on the issue." Giles, 571 F.3d at 322 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255